Quandary for tobacco POP

Published on February 11, 1997.

U.S. district court Judge William Osteen, hearing tobacco and ad industry challenges to new Food & Drug Administration cigarette marketing rules, said it will be five to 10 weeks before he rules on whether the FDA has authority to regulate tobacco. That's potentially a problem for tobacco companies that say they must begin ordering point-of-sale advertising for next September by this March 1.

Most of the new FDA rules severely limiting imagery and color in advertising giveaways and outdoor signs would take effect Aug. 28, with sponsorship restrictions taking hold a year later.

In an odd twist to normal tobacco arguments, the tobacco industry on Monday argued that following its own rules, the FDA has only one alternative in seeking to regulate tobacco: banning tobacco. The FDA, in turn, argued that it could regulate tobacco, while not having to ban cigarettes and tobacco.

In the advertising arguments, tobacco companies and advertising groups argued that the FDA restrictions were well beyond anything allowable under the First Amendment. "[The FDA solution] is patently overbroad," said Dan Troy, an attorney for tobacco companies. "There is a disconnect with what they say they are doing and what they are actually doing."

Mr. Troy and John Oberdorfer, an attorney for ad groups, argued that restrictions on color, imagery and placement in advertising were so broad under the FDA rules as to make them unconstitutional under the First Amendment. However, they conceded that some advertising restrictions might be allowable if they were limited in scope.

With FDA Commissioner David Kessler in attendance, the government argued that it had wide authority to regulate advertising for tobacco and was taking the step of regulation as an alternative to a ban which might hurt 50 million people who are addicted to tobacco.

Earlier, Richard Cooper, an attorney for tobacco companies, called the FDA's tobacco rules "an extraordinary assertion of power never before applied to a tobacco product." "If the FDA wins," he said, "every clerk of every store or every gas station would come under FDA regulation."

The judge repeatedly questioned some of the advertising assumptions suggesting that the FDA had some rights to regulate advertising, but offering few hints in terms of how many rights.